Before Thanksgiving, I had my first opportunity to travel to Yosemite. It is almost too difficult to put into words the beauty of the Park. One of the places I most wanted to see was El Capitan. While we were there, a couple of climbing teams were attempting to climb it. Our Park Guide said that a climb usually took five days or so now. However, there was a time when El Capitan was considered insurmountable. That ended on November 12, 1958, when Wayne Merry “and two others became the first to scale a 2,900-foot granite wall in Yosemite National Park in California that many considered practically unclimbable.”
I thought about Merry as he recently passed away. According to his New York Times obituary, George Whitmore, the final surviving member of the three man climbing team, said of Merry, he was “the epitome of a good, steady fellow” whose “even-tempered, usually cheerful, never negative” outlook made climbing El Capitan possible.” His style was “Don’t get excited, just keep plugging away at it. Maintain a positive attitude.” Those are traits for any Chief Compliance Officer (CCO) as well.
I recently had the chance to sit down with Mikhail Reider-Gordon, Managing Director of Global Affairs at Affiliated Monitors, Inc. (AMI), for a five-part sponsored podcast series. One of the topics we considered is the American Bar Association (ABA) Guidelines on Monitors. The ABA Guidelines are a key document for any compliance practitioner considering use of a monitor.
Gordon has been heavily involved in the ABA for more than a decade. She currently serves on the Council, the Section of International Law and has done so for about 10 years off. She previously served as the Rule of Law Officer and is currently serving as Technology Officer. She has served on a number of committee levels, Co-Chair of the International Anti-Corruption Committee, the Anti-Money Laundering Committee and the Corporate Social Responsibility Committee. Basically, Gordon is “a fan of the ABA.”
Gordon has long been a part of the ABA’s discussions around monitors. These standards are found under the Criminal Justice Standards on Monitors (the “ABA Standards”). The ABA Standards emphasize the selection process of a monitor should encourage consideration of a broad range of monitor candidates and should not be artificially limited by demographic, professional and geographic factors. Gordon also emphasized that “under qualifications, integrity, credibility and professionalism are the top of the list.”
Moreover, under potential exclusion, there are a number of examples the standard provides that really should be baked into every monitor selection process. Basically, anything that appears to create a conflict of interest or would be perceived to impair the monitor’s judgment or independence are non-starters. Yet, Gordon believes the standards actually go further. She stated, “They go onto provide additional factors that should be considered, some of which may seem obvious to us; such as not having worked for the organization being monitored during the time of the activity in question; not holding prior affiliation with a firm that provided legal or other professional services to the organization being monitored; and even extending to any other factor that could bias or impair or be perceived bias or impair the monitor’s judgment, objectivity, independence, including the prospect of future engagement or other economic considerations that could influence it”. The bottom line is that the ABA Standards “emphasizes the importance of independence.”
All of this extends beyond the criminal side where a monitorship might be put into place concerning a prosecution. It also extends to the civil side of enforcement. Moreover, the ABA Standards can also be applied to a variety of situations where the independent third-party might be an ombudsman, Independent Sector Inspector Generals or other nomenclature. Gordon believes that “encoding true independence is essential no matter what form a monitorship takes, what title you give it, or whatever you might call it.”
I asked Gordon not simply about monitor impartiality, but even the appearance of bias or the perception of partiality by a monitor selection or a monitor’s actions. Gordon believes this additional criterion, both the appearance of bias and the perception of impartiality, “gets a little lost a times during the selection process.” It is this true independence which invests trust and faith by courts and other stakeholders in the institution of oversight by independent third-party monitors. It also leads to how well external stakeholders feel about the value of the monitorship and what is being delivered to the organization.
Gordon concluded that the independence cannot be over-emphasized. It is more than simply independence and non-impartiality in the selection process but in the entire monitorship. For the system to work properly for all stakeholders, there must be true independence. Yet the ABA Standards go further with prohibitions on both the appearance of bias and the perception of impartiality. It is this additional step which is the cornerstone of the system.
For the full ABA Standards on Monitors, click here.
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